131214840-Carl-Schmitt

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unity. First through this processs can the legislative itself be balanced and mediated either in
a bicameral system or through federalism; but even within a single chamber the balancing of
outlooks and opinions functions as a consequence of this special kind of rationalism. An
opposition belongs to the essence of parliament and every chamber, and there is actually a
metaphysic of the two-party system. Normally a rather banal sentence is quoted, usually from
Locke, to justify the balance of power theory. 20 It would be dangerous if the offices which
make the laws were also to execute them; that would be too much temptation to the human
desire for power. Therefore, neither the prince as head of the executive nor the parliament as
legislative organ should be allowed to unite all state power in themselves. The first theories
of the division and balance of power developed, after all, from an experience of the
concentration of power in the Long Parliament of 1640. 21 But as soon as a justification in
political theory was established, a constitutional theory with a constitutional concept of
legislation appeared on the Continent. According to this, the institution of parliament must be
understood as an essentially legislative state organ. Only this legislative concept justifies a
notion that is scarcely understood today but which has held an absolutely dominant position
in West European thought since the middle of the eighteenth century: that a constitution is
identical with division of power. In article 16 of the Declaration of the Rights of Man and
Citizens of 1789 can be found its most famous proclamation: "Any society in which the
separation of powers and rights is not guaranteed has no constitution." 22 That the division of
powers and a constitution are identical and that this defines the concept of a constitution even
appears in German political thought from Kant to Hegel as a given. In consequence such a
theory understands dictatorship not just as an antithesis of democracy but also essentially as
the suspension of the division of powers, that is, as a suspension of the constitution, a
suspension of the distinction between legislative and executive. 23
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